Plaintiffs offer no evidence to support their claim that the Village had a policy or custom of inadequately screening, training and supervising officers, and that such policy directly caused the alleged constitutional violation. Defendants move for summary judgment on the claim against the Village, arguing that a single incident of an alleged constitutional violation by an officer cannot alone support a claim of a policy or custom on the part of the Village. However, because discovery has not been completed, we grant plaintiffs a limited extension of time to complete discovery in order to determine if their claim against the Village can be supported by evidence of a policy or custom on the part of the Village that directly caused the alleged constitutional violation.

II. Section 1983 Excessive Force Claim Against Scott

As a general rule, police officers are entitled to qualified immunity if (1) their conduct does not violate clearly established constitutional rights, or (2) it was objectively reasonable for them to believe their acts did not violate those rights. Oliveira v. Mayer, 23 F.3d 642, 648 (2d Cir. 1994), cert. denied, 130 L. Ed. 2d 627, U.S. , 115 S. Ct. 721, 115 S. Ct. 722 (1995). There can be no dispute that freedom from the use of excessive force is a clearly established constitutional right. The issue is whether it was objectively reasonable for Scott to believe that his acts did not violate Javid's constitutional right to be free from the use of excessive force. At the time that Javid was shot, a reasonably prudent officer would have recognized that an officer could use deadly force to effect the arrest of a fleeing felon if, under the circumstances, he reasonably believed such force was necessary to protect himself or others from death or serious physical harm. Tennessee v. Garner, 471 U.S. 1, 11, 85 L. Ed. 2d 1, 105 S. Ct. 1694 (1985). Excessive force claims under section 1983 are governed by the Fourth Amendment standard of "objective reasonableness." Graham v. Connor, 490 U.S. 386, 395, 104 L. Ed. 2d 443, 109 S. Ct. 1865 (1989)
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; Finnegan v. Fountain, 915 F.2d 817, 823 (2d Cir. 1990). See also Tennessee v. Garner, 471 U.S. 1, 7, 85 L. Ed. 2d 1, 105 S. Ct. 1694 (1985) ("There can be no question that the apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment.")

A. Objectively Reasonable Standard

The Supreme Court has set forth several principles in holding that an excessive force claim is to be analyzed under an "objectively reasonable" standard of the Fourth Amendment:

The 'reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. . . . The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments -- in circumstances that are tense, uncertain, and rapidly evolving -- about the amount of force that is necessary in a particular situation. . . .

As in other Fourth Amendment contexts, however, the 'reasonableness' inquiry in an excessive force case is an objective one: the question is whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. . . . An officer's evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer's good intentions make an objectively unreasonable use of force constitutional.

Proper application of the test of reasonableness under the Fourth Amendment "requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Graham, 490 U.S. at 396.

Defendants argue that "undisputed facts" derived from Javid's testimony at his criminal trial for manslaughter establish, as a matter of law, that Scott's actions were "objectively reasonable" and therefore shielded by qualified immunity. As the argument goes, because Scott invoked the Fifth Amendment privilege against self-incrimination at his deposition, and because he will invoke the privilege at trial, the "undisputed facts" from Scott's criminal trial testimony are all the relevant facts that will be available. Defendants' logic is riddled with unfounded assumptions and conclusions.

As a preliminary matter, we have not ruled on whether the Fifth Amendment privilege is even available to Scott. The issue has never been raised by the parties before this court. Scott already has been tried and acquitted of manslaughter in State Court in connection with the fatal shooting of Javid. Defendants have identified no potential criminal liability to which Scott could be exposed by his testimony at trial or at deposition.

The "undisputed facts" submitted by defendants are those given by defendant Scott in his testimony at his criminal trial for the fatal shooting of Javid. If Scott testifies at trial, the jury will decide the facts and circumstances of the chase and of the crucial moment when Scott shot Javid. Based on these facts and circumstances, the jury must decide whether Scott's actions were "objectively reasonable."

Scott claims that he saw certain things which could have caused a reasonably prudent officer to believe that he was justified in exercising deadly force. Scott testified that, during the chase, he saw what he thought was a gun. However, Scott testified that, just prior to shooting Javid, he saw Javid look at him, then turn away, then look at him again as the truck came towards him. Whether Scott subjectively believed that Javid was about to shoot him is irrelevant. The relevant inquiry is how a reasonably prudent officer would have acted based on those facts and circumstances. Facts and circumstances include what Scott saw and heard, not what Scott believed. The jury should decide (1) what Scott saw prior to shooting Javid and (2) whether Scott's actions, based on what he saw, were objectively reasonable (i.e., whether a reasonably prudent officer would have acted similarly).

Even assuming, arguendo, that Scott could invoke the Fifth Amendment privilege at trial, a jury may draw a negative inference from Scott's refusal to answer questions regarding what took place during the chase.
*fn2"
A reasonable jury may discount the accuracy of Scott's testimony (from the criminal trial) regarding the facts and circumstances of the chase. If the jury does not believe that testimony, a jury may reasonably conclude that no reasonably prudent officer would have believed that he or she was justified in using deadly force. We will not permit Scott to invoke the Fifth Amendment to shield himself from examination while offering his self-serving statements as the only available evidence relevant to his asserted justification for the use of deadly force.

C. Common law tort claims

Plaintiffs' Amended Complaint includes a reference to common law tort claims of assault, battery, and wrongful death against Scott. See Am. Compl. P 3 ("This Court's supplemental jurisdiction is also invoked to assert the plaintiffs' claims against the defendants of the torts of assault and battery and wrongful death under the common law of the State of New York."). Yet, in the Statement of Claims, plaintiffs do not specifically assert any common law tort claims. Nevertheless, under the liberal pleading rule of Rule 8 of the Federal Rules of Civil Procedure, we conclude that paragraphs 11-15 of the Amended Complaint set forth sufficient allegations to support common law tort claims.

This court has discretion to exercise its supplemental jurisdiction over state law tort claims where a plaintiff's federal and state claims "derive from a common nucleus of operative fact" and are such that the plaintiff "would ordinarily be expected to try them all in one judicial proceeding." United Mine Workers of America v. Gibbs, 383 U.S. 715, 725, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966). The court will generally exercise supplemental jurisdiction if "considerations of judicial economy, convenience and fairness to litigants weigh in favor of hearing the state and federal claims at the same time." Id. at 726; see also 28 U.S.C. § 1367(a) (1988) ("In any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution"). There can be no dispute that plaintiff's state and federal claims against defendant Scott arise out of a common nucleus of operative fact.

Defendants argue that a single incident of an alleged constitutional violation by a police officer does not suffice to demonstrate a municipal policy. See Canton v. Harris, 489 U.S. 378, 389, 103 L. Ed. 2d 412, 109 S. Ct. 1197 (1989) ("Monell's rule that a city is not liable under § 1983 unless a municipal policy causes a constitutional depravation will not be satisfied by merely alleging that the existing training program for a class of employees, such as police officers, represents a policy for which the city is responsible."); Tuttle, 471 U.S. at 823 ("Obviously, if one retreats far enough from a constitutional violation some municipal 'policy' can be identified behind almost any such harm inflicted by a municipal official; for example, [the police officer] would never have killed [the decedent] if Oklahoma City did not have a 'policy' of establishing a police force. But Monell must be taken to require proof of a city policy different in kind from this latter example before a claim be sent to a jury on the theory that a particular violation was 'caused' by municipal 'policy.' At the very least there must be an affirmative link between the policy and the particular constitutional violation alleged."). In addition, defendants cite Turpin v. Mailet, 619 F.2d 196 (2d Cir.), cert. denied sub nom. Turpin v. City of New Haven, 449 U.S. 1016, 66 L. Ed. 2d 475, 101 S. Ct. 577 (1980), for the proposition that an incident of alleged illegality "such as a single arrest without probable cause or made with excessive force" is insufficient to impose liability upon a municipality as a matter of law.

Defendants' argument mirrors the reasoning in Dwares v. City of New York, 985 F.2d 94 (2d Cir. 1993), where the Second Circuit dismissed a section 1983 claim against a municipal defendant on the ground that conclusory allegations of a policy or custom supported by a single alleged act of constitutional violation did not state a cause of action. The Dwares court held that in order to hold a municipality liable under section 1983 for the conduct of employees below the policymaking level,

985 F.2d at 100 (citing Tuttle, 471 U.S. at 823-24; Fiacco, 783 F.2d at 328; Turpin, 619 F.2d at 202). However, we believe that these standards are no longer appropriate, in light of the United States Supreme Court's decision, Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 113 S. Ct. 1160, 122 L. Ed. 2d 517 (1993), issued shortly after the Dwares decision. The Supreme Court held that a federal court may not apply a "heightened pleading standard" -- more stringent than the usual pleading requirements of Federal Rule of Civil Procedure 8(a) -- in civil rights cases alleging municipal liability under section 1983:

We think that it is impossible to square the "heightened pleading standard" . . . with the liberal system of "notice pleading" set up by the Federal Rules. Rule 8(a)(2) requires that a complaint include only "a short and plain statement of the claim showing that the pleader is entitled to relief."

113 S. Ct. at 1163. The Supreme Court specifically rejected the argument that, to establish municipality liability under section 1983, "a plaintiff must do more than plead a single instance of misconduct." 113 S. Ct. at 1162. Instead the Court suggested that "federal courts and litigants must rely on summary judgment and control of discovery to weed out unmeritorious claims sooner rather than later." Id. at 1163.

Furthermore, the Second Circuit in Turpin, which is relied on by defendants, actually held that a single incident of alleged constitutional violation may support a claim against the municipality; the court simply found that plaintiff's evidence was insufficient to prove that the incident was the result of an official policy:

We agree that, absent more evidence of supervisory indifference, such as acquiescence in a prior pattern of conduct, a policy could not ordinarily be inferred from a single incident of illegality such as a first arrest without probable cause or with excessive use of force. . . . However, a single, unusually brutal or egregious beating administered by a group of municipal employees may be sufficiently out of the ordinary to warrant an inference that it was attributable to inadequate training or supervision amounting to deliberate indifference or "gross negligence" on the part of officials in charge.

Turpin, 619 F.2d at 202.

Plaintiffs in the instant case specifically alleged a direct link between policies of the Village and the allegedly unconstitutional use of force. See, e.g., Am. Compl P 28 ("It was also a policy of the defendant VILLAGE OF MONROE to improperly and inadequately train and instruct the members of the Village of Monroe Police Department, including the defendant EDWARD SCOTT, in the proper manner of effectuating an arrest and in the proper exercise of self-restraint in the use of violence against civilians and persons being apprehended."). Plaintiffs' allegation, if proven true, would establish that the Village's policy and custom of inadequate screening, training or supervision directly caused the excessive use of force by Scott against Javid. We find that plaintiffs have satisfied the Rule 8(a) pleading requirement for asserting a valid section 1983 claim against the Village. Under Leatherman, we cannot dismiss plaintiffs' claim on the ground that "plaintiffs must do more than plead a single instance of misconduct."

However, on a motion for summary judgment, plaintiffs may not rest solely on the pleadings in their Amended Complaint. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Plaintiffs must "go beyond the pleadings and by [their] own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Id. Plaintiffs have identified no evidence to support a claim that the Village had a policy or custom that caused the alleged constitutional violation. Therefore, we are inclined to grant summary judgment dismissing plaintiffs' section 1983 claim against the Village.

We have discretion to exercise supplemental jurisdiction over related state law claims. As previously mentioned, defendants have not directly addressed the common law tort claims against the Village, which are based on a theory of respondeat superior. Allowing such claims against the Village would undermine the Monell requirement that plaintiffs prove direct causation between acts of the Village and the alleged constitutional violation. Plaintiffs may not invoke respondeat superior to circumvent the strict requirements for establishing municipal liability for allegedly unconstitutional acts by police officers, as clearly established by Supreme Court decisions.

However, our conclusion that respondeat superior may not serve as a basis for liability against the Village does not end the inquiry. Plaintiffs may still establish liability directly, and we grant plaintiffs leave to complete discovery in order to determine whether or not any evidence supporting such liability exists.

CONCLUSION

For the foregoing reasons, defendants' motion for summary judgment with respect to claims against Scott is denied, and consideration of defendants' motion for summary judgment with respect to claims against the Village is deferred pending further opportunity for discovery. Plaintiffs shall complete discovery within thirty (30) days of the date of this order and file any supplement to their previous submissions on this motion within forty-five (45) days of the date of this order.

SO ORDERED.

January 19, 1996

White Plains, New York

William C. Conner

U.S. Senior District Judge

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